J. I. Simon, Pittsburgh, for appellant.
Thomas E. Barton, Oliver L. Johnson, Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 184]
George Boyd died on April 18, 1946, and by his will dated February 21, 1946, and admitted to probate after a contest before the register, divided his estate equally between 'Annie Jamison, my beloved niece and Martha Tyson, friend.' By a prior will dated December 27, 1945, he divided his estate between 'my niece Annie Jamison * * * and Thomas George Williams, now a minor.' Thomas is a son of Laura Williams, whose claim as the common law wife of testator was rejected in Jamison v. Williams, 164 Pa. Super. 344, 64 A.2d 857. After that decision, Laura Williams, as the mother and natural guardian of Thomas, appealed from the probate. The hearing judge and, upon exceptions, the court in banc dismissed her appeal, and she brought the case here.
Before the register contestant contended solely that the decedent lacked testamentary capacity. In the court below and here she asserted that testator had weakened mentally and that the terms of his last will resulted from undue influence exerted by Martha Tyson who stood in a confidential relation with him. Contestant does not question Boyd's testamentary capacity, and proponents concede that his mind had become weak. Contestant sought to show a confidential relation between him and Martha Tyson, and thereby cast upon proponents the burden of showing that Boyd was free from undue influence, relying upon In re Quein's Will, 361 Pa. 133, 62 A.2d 909. The court below found that the alleged confidential relation did not exist; that Martha Tyson, in fact, exerted no undue influence upon the testator; and that the evidence did not disclose the existence of a substantial and material dispute of fact.
On appeal, the findings of fact of the court below are entitled to great consideration, In re Masho's Estate, 303 Pa. 56, 153 A. 899, especially where the case depends upon the testimony of witnesses whose credibility must
[ 168 Pa. Super. Page 185]
be weighed and passed upon. In re Lowe's Estate, 318 Pa. 497, 178 A. 820. We read the testimony to determine whether the findings are supported by the evidence, but we do not retry the case de novo. In re Pusey's Estate, 321 Pa. 248, 184 A. 844. The question for us to decide is not whether this Court would have reached the same result had it been sitting as chancellor, but rather whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor; in other words, the decision of the court below will not be reversed unless an abuse of discretion on its part appears. In re Dible's Estate, 316 Pa. 553, 175 A. 538.
It may be set down at once that Boyd had deteriorated mentally and physically, and yet he possessed testamentary competency. He was 48 years old at his death, and for many years had been a Pullman porter. Sometime in September, 1945, a group of white soldiers threw him from a moving train or else he jumped from it because of their threats. He suffered a head injury, never returned to work, and developed a 'psychosis possibly secondary to injury', as one physician diagnosed it. Apparently, 'he feared white people in general and white soldiers in particular', so Judge Ryan found. Some medical men found him subject to a 'fear complex' or 'a persecution complex', and others who attended him from time to time found him irrational, nervous, and 'out of his mind.' The day before his death he cut his wrists with a razor, and he came to his death by either jumping or falling out of a window in the house where he lived with contestant.
He was a patient in the Allegheny General Hospital from November 3 to November 20, 1945, and for a month or six weeks, commencing December 22, 1945, he was an inmate in a rest home. While in the latter institution he executed his first will which ...